Copyright Small Claims Court

In testimony before the Subcommittee on Courts of the Judiciary Committee of the U.S. House of Representatives, Victor S. Perlman, ASMP General Counsel and Managing Director proposed the establishment of a Copyright Small Claims Court. The court would create an inexpensive legal procedure for collecting small copyright claims involving a few thousand dollars or less in an expeditious manner.

Perlman said that freelance photographers create the largest numbers of copyrighted works of any class of creators, yet as a group they are least able to access the protections theoretically afforded by the Copyright Act due to the extremely high cost of federal court litigation for typically low amounts in controversy.

He also pointed out that, "the availability of statutory damages and attorney's fees is often an illusory benefit" because copyright lawyers are usually unwilling to accept infringement cases when the amount of unauthorized use is small. And he noted that, "If legislation currently being considered for so-called 'orphan works' is enacted in a form that will limit the photographer's damages, the situation will only be exacerbated."

Perlman told the committee that pursuing a copyright claim in federal court can be a serious disruption to a photographer's business and an emotional drain as he is constantly asked for more documentation related to the particular infringement and his business in general. In speaking to a committee made up mostly of lawyers he said, "Attorneys are in the business of dealing with litigation, and we are used to living with it --- it is our job, no more, no less. We often lose sight of the soft costs of litigation. However, to individual creators who are parties to litigation, the experience is intensely personal and emotional, and it stays at the front of their minds every minute from the beginning of the case to the end, and even long after. In addition, the time spent working on the case is time that cannot be spent on making or marketing photographs.

"As an example of the last point, you may recall the landmark case of Rock and Roll Hall of Fame v. Chuck Gentile. The case involved trademark and related claims asserted by the Rock and Roll Hall of fame based on the photographer's poster showing a photo of the Hall of Fame building. The photographer won in the 6th Circuit. Between the photographer's insurance and help from some fundraising by ASMP, the photographer did not have to pay any costs of defense, himself. Despite that, when the case was over, the time and emotional demands of the litigation had destroyed his marriage, ruined his business, and forced him out of the photography profession entirely. The costs of federal litigation for an independent contractor are not limited to money --- years of investing time and energy in a single case are crippling to people whose sole source of income is their ability to create and market their work."

Perlman also acknowledged that there are many possible ways and variations as to how a system could be structured for collecting claims involving a few thousand dollars or less, and said that "ASMP would support virtually any arrangement that would accomplish the desired goal." Then he went on to outline his proposal.

"As a starting point for your consideration, we offer the following. In our view, to make the system truly efficient and affordable, it should be structured to require the parties to proceed pro se; lawyers should not be permitted to represent either side. Once attorneys enter the picture, the potential complexities and resultant costs escalate. This would essentially be "People's Court" for smaller copyright claims.

"The system should also permit only limited pre-trial discovery, if any. All relevant documents should be submitted by the parties to the court and each other before the hearing date. Discovery makes litigation more extended, complex and expensive.

"There should be a (comparatively) short time frame from complaint to answer to hearing to disposition.

"Hearings would be tightly controlled and of short duration. Where the parties are in distant locations from each other, hearings might even be conducted over video-conferencing systems rather than in person.

"Appeals should require the appellant to post a bond sufficient to cover the appellee's estimated attorney's fees for the appeal, in the event that the appellant lost the appeal.

"Our wish list would cap jurisdiction at $10,000., which is the limit for many large-city small claims courts.

"Our preference would also be that the judge be (or become) a copyright specialist by virtue of his or her assignment to a copyright-specific small claims court or to an administrative law judge position affiliated in some fashion with the Copyright Office, perhaps along the lines of the Copyright Royalty Judge system. One of the big problems facing small copyright owners is the fact that many Judges do not have much familiarity with copyright, and they are particularly unfamiliar with the customs and practices of pricing usage of commercial photographs and other commercial works of art. Presumably, having an adjudicator who deals with these areas of the law repeatedly would help to eliminate that problem."

He concluded by saying, "virtually everyone in the copyright world has long recognized that photographers are uniquely disenfranchised from access to the copyright protections to which they are legally entitled. Anything that this Committee can do to help correct that situation would be of great benefit to photographers and greatly appreciated by them.

"Perhaps more importantly, this is one of those all too rare situations where Congress can really do "the right thing," help the little guy, and make our legal system move a bit closer to a system of justice, not just of laws."

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.

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